Case Detail

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

District

District of Columbia

City

Washington, DC

Case Number

1:2015cv00309

Date Filed

2015-03-03

Date Closed

2017-01-31

Judge

Judge Colleen Kollar-Kotelly

Plaintiff

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.

Case Description

People for the Ethical Treatment of Animals submitted a FOIA request to the Centers for Disease Control for records required to be submitted to CDC by primate importers and transporters. PETA asked CDC for an estimated date of completion and the agency indicated that it would need to notify a number of importers/transporters for their comments as to the confidentiality of information and that it would take 32 months to process PETA's request. After hearing nothing further from the agency concerning the predisclosure notification process, PETA filed suit.Complaint issues: Failure to respond within statutory time limit, Exemption 4 - Predisclosure notification, Litigation - Attorney's fees

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the Centers for Disease Control and Prevention properly withheld four of the five categories of information requested by People for the Ethical Treatment of Animals supplied by non-human primate importers under Exemption 4 (confidential business information), but that because three companies did not respond to the agency's pre-disclosure notification those companies effectively waived confidentiality for the same information. While it appears the three companies made a deliberate decision not to respond to the pre-disclosure notification their reasons for not responding are not explicitly spelled out, leaving at least some possibility that they did not receive the pre-disclosure notification or failed to understand its importance. Regardless, Kollar-Kotelly's finding that the companies effectively waived confidentiality for the data suggests that the burden of supporting an Exemption 4 claim lies primarily with the submitter rather than the agency. The case involved a May 2014 request by PETA for data submitted by importers under CDC regulations. CDC told PETA in August 2014 that Executive Order No. 12600 required the agency to notify submitters and give them an opportunity to identify information they believed was confidential. CDC estimated the process would take 36 months. PETA then filed suit. CDC provided pre-disclosure notification to the ten companies that had provided the relevant data. Seven companies responded, while three did not. In June 2015, CDC provided PETA 669 pages of responsive documents. It released another 906 pages a month later. The agency withheld 144 pages in full and made redactions under Exemption 4 and Exemption 6 (invasion of privacy). Although the records contained several dozen categories of information relating to the importation of non-human primates, PETA challenged the agency's withholding of five categories�"the species of animals imported, the quantity of animals imported, the descriptions of crates used in shipments, the names of the companies that export the animals, and the names of the airline carriers that transport the animals. Kollar-Kotelly dispensed with PETA's assertion that the search was inadequate because it failed to uncover registration forms for a number of NHP importers. Instead, she agreed with the agency that PETA's request was for registration forms for new importers or companies who were renewing their registration. She indicated that "according to the declaration submitted by CDC, no responsive records were located, as there were no new or renewing applicants for non-human primate importation registrations during this time period." Because the submitters were required to provide the information to the CDC, Kollar-Kotelly noted that the agency had to show a likelihood of competitive harm if information was disclosed. Relying on affidavits from importers who had responded to the agency's pre-disclosure notification, Kollar-Kotelly found the agency had carried its burden of showing a likelihood of competitive harm for four of the five categories. She pointed out that the agency had not shown that disclosure of the names of species imported would result in competitive harm. She explained that "the 1575 pages of responsive records produced by CDC already contain extensive disclosures of the names of the animal species imported by the ten NHP importers at issue during the twelve-moth time period at issue. The records produced by CDC disclose, at least in part, the names of animal species imported by nine of ten NHP importers in question. Such extensive disclosure undercuts CDC's argument that the names of the species imported by each individual NHP importer constitute valuable commercial information that can be used by competitors to gain an advantage over the importer submitting that information. CDC's argument is further undercut by Plaintiff's production of evidence demonstrating that in many instances, the names of species imported by NHP are publicly available." But she agreed the agency had shown that the other four elements �" the quantity of animals imported, the description of the crates used in shipments, the names of exporters, and the names of airline carriers�"could cause competitive harm if disclosed. Here, she pointed out that "the disclosure of the names of exporters and the names of airline carriers on a shipment-by-shipment basis for the twelve-month time period at issue would enable competitors to gain an edge in this competitive market by obtaining valuable business data regarding the affected importer's 'supply chains, patterns of importation. . .and business relationships.' Furthermore, the disclosure of the quantity of species and the sizes of crates used during the importation process, when paired with the names of species, would provide competitors with valuable, detailed business data concerning each importer's capacity to import specific species and each importer's volume of business on a shipment-by-shipment basis. Such a disclosure could provide a competitive advantage to competitors, and enable competitors to interfere with an importer's supply of such species." PETA argued that much of the information was already publicly available. Kollar-Kotelly disagreed, noting that "PETA's argument is unavailing because none of the publicly available information cited by PETA involves shipment-by-shipment data that would reveal details regarding each importer's business relationships, importation capacity, and supply chains. Rather, the publicly available information cited by PETA largely involves generalized industry-wide information�"such as an aggregate list of airlines that are legally registered to ship primates for experimentation and a public list of exporters that provide services related to the exportation of primates. Moreover, the fact that there is some publicly available information concerning some business agreements between NHP importers and exporters does not alter the Court's analysis. If the names of exporters were disclosed in the records at issue, competitors could pair those names with other publicly available information" to reverse-engineer the companies' business models. She rejected PETA's claim that the agency's occasional disclosure of the names of some carriers suggested that their identities were not considered confidential. Pointing out that the disclosures tracked the comments received by submitters, Kollar-Kotelly indicated that "the fact that several individual NHP importers. . .did not object to a handful of references to the exporter names and airline names [being released] does not undermine the collective evidence compelling the conclusion that the general disclosure of such information. . .would cause substantial competitive harm to the NHP importers submitting the information." But Kollar-Kotelly took a far different approach to the fate of the information from three NHP importers who did not respond to the agency's pre-disclosure notification. She found those three importers had waived their confidentiality by failing to object. She noted that "because these three companies have elected not to object to the disclosure of the requested information�"despite having the opportunity to do so�"there is a reasonable assumption that these three companies would not face substantial harm by the disclosure of the requested information." Nevertheless, CDC had redacted the disputed information pertaining to the three companies. Kollar-Kotelly ordered the agency to disclose that information because the CDC had not met its burden to show competitive harm as to the three non-objecting companies. She pointed out that "there is a reasonable inference that these three companies have not objected to the disclosure of their records because they do not believe that they will face substantial harm by the disclosure of such records." PETA argued the disclosure of the four categories of information would not cause substantial harm to any one importer because they would all be impacted equally. CDC argued that the information differed depending on an importer's size of business. Kollar-Kotelly agreed with the agency, observing that "this information can be used by international companies that are also engaged in the importation of NHPs, but have not been required to submit information to CDC because they have not yet entered the United States market." PETA also argued that the disclosure of information about airlines that no longer ship primates to labs could not possibly cause competitive harm. Kollar-Kotelly, however, indicated that "if information concerning the departing airlines were disclosed in the records at issue, the records would reveal which importers maintained relationships with that airline, and the information could provide valuable information to competitors seeking to gain knowledge of which importers were most affected by the airline's departure from the market." Kollar-Kotelly dismissed the agency's contention that disclosure of the information would impair its ability to obtain similar information in the future. Agreeing with PETA's contention that "in theory, any agency could assert that its ability to obtain information in the future will be impaired because submitters will break the law and withhold information that they are required to provide," Kollar-Kotelly pointed out that "if courts were to permit these arguments, the D.C. Circuit's analytical distinction between information submitted voluntarily and involuntarily would be rendered meaningless."
Issues: Exemption 4 - Impairment of agency, Exemption 4 - Competitive harm, Exemption 4 - Predisclosure notification

FOIA Project Annotation: After previously ruling that several non-human primate importers had waived any Exemption 4 (confidential business information) protection by failing to provide objections to the Centers for Disease Control, Judge Colleen Kollar-Kotelly has reversed herself after agreeing with CDC that the companies had not responded because they were unaware that the information was part of a FOIA request submitted by People for the Ethical Treatment of Animals until after receiving Kollar-Kotelly's initial ruling. After the agency contacted the three NHPs, all of them indicated that they were unaware of the original pre-disclosure notification letter and had not intended to waive their confidentiality claims. CDC asked Kollar-Kotelly to reconsider her earlier ruling, providing declarations from all three companies that they considered the information confidential. Although PETA argued that the agency did not qualify for reconsideration under Rule 60 because the agency knew the three NHPs had not responded before Kollar-Kotelly's original ruling and, thus, had provided no basis for a claim that new evidence existed requiring reconsideration. Kollar-Kotelly agreed that Ruled 60(b)(2), requiring the existence of new evidence, did not apply, but pointed out that Rule 60(b)(6), which allows reconsideration for "any reason that justifies relief," was broad enough to encompass these circumstances. She pointed out that "the case for reconsideration is especially strong where the effect of the error, if not corrected, would be to harm the interests of third parties, as opposed to the erring litigant." She indicated that "here, the Court has become aware of precisely such a 'previously undisclosed fact,' and to ignore it would render its original opinion inherently unfair to the third parties whose business information is at risk. The court found that seven of the ten importers at issue would face 'substantial competitive injury' if four categories of their confidential business information were disclosed. However, the Court did not apply this finding equally to all ten importers at issue. The Court noted that 'three of the ten NHP importers submitting the requested information have elected not to object to the disclosure of that information.' Based only on this lack of objection, the Court held that 'the three companies that chose not to object to the disclosure of their information. . .have not proffered that disclosure would harm their companies.' The Court found that there was a 'reasonable inference that these three companies have not objected to the disclosure of their records because they do not believe that they will face substantial harm by the disclosure of such records.'" She noted that "as it turns out, this inference was not correct. Defendant has now provided declarations from representatives of these three importers which state that the companies at issue did not fail to object because they did not believe disclosure would cause harm. Instead, the Rule 60(b) Declarations indicate that they failed to object because they were not aware that their information had been requested and was subject to disclosure." Accepting the Rule 60(b) declarations, Kollar-Kotelly observed that "a basic premise upon which that decision rested was mistaken. Other than the inference the Court drew from their lack of objection, there was no material difference between [those importers] and the other importers. The reasoning underlying the Court's decision that disclosure of the four categories of information at issue would cause substantial harm to the others applied equally to [the non-responding importers]." She indicated that "if anything, the harm to these importers would be greater, considering they would now be at a competitive disadvantage in relation to the importers whose information the Court ordered was properly withheld. There is no longer any just reason to treat the records of the previously non-objecting importers differently than the other importers at issue. In fact, to do so would be inherently unfair." PETA argued that CDC had not done enough to contact the three non-responding importers. But Kollar-Kotelly pointed out that "defendant complied with the procedures for notifying the importers of Plaintiff's FOIA requests that is laid out in [agency regulations] by sending pre-disclosure notices to [the importers]. Defendant accordingly acted reasonably and was required to do nothing more." PETA argued the agency should have followed up after the three importers did not respond. Kollar-Kotelly noted, however, that "defendant presumably assumed, as did this Court, that [the non-responding importers] silence meant that they had received the pre-disclosure notices and simply did not object to the release of their records. Defendant accordingly had no reason to contact [the non-responding importers] for evidence of commercial harm in the process of preparing its motion for summary judgment. The Court does not find Defendant's behavior in this sense unreasonable." PETA had also filed a Rule 60 motion, arguing that two other importers had failed to claim in their responses that animal quantity or crate information was confidential. After reviewing those statements, Kollar-Kotelly agreed. She noted that "despite [the two importers'] statements regarding the importance of such information, both demonstrated that they are not, in fact, sufficiently concerned about the release of this information on their own records for the Court to hold that such information is confidential. As a result, the Court will grant Plaintiff's motion in part, in that it now finds that quantity and crate information for [the two importers'] records is not confidential information protected under Exemption 4." PETA argued that the two importers' failure to claim confidentiality for their own quantity and crate information suggested that such information was not considered confidential within the industry. Kollar-Kotelly refused to go that far. Instead, she pointed out that the two importers' declarations "are still probative in that they explain the reasons why the release of such information would cause competitive harm in the NHP industry as a general proposition." PETA also argued that the importers had misrepresented the confidentiality of these records since the importers often cooperated with each other. But Kollar-Kotelly noted that "competitors may buy and sell from each other, or work together on a particular joint venture, but that does not undermine the Court's finding that as a general matter they are competitive with, and keep key business-model information confidential from, each other."
Issues: Exemption 4 - Confidential business information, Exemption 4 - Competitive harm, Exemption 4 - Predisclosure notification

SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Form, # 2 Notice of Consent)(rd) (Entered: 03/03/2015)

2015-03-03

4

ORDER Establishing Procedures for Cases Assigned to Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on March 3, 2015. (NS) (Entered: 03/03/2015)

2015-03-16

5

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General March 10, 2015. (Goodman, Jared) (Entered: 03/16/2015)

2015-03-16

6

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/10/2015. Answer due for ALL FEDERAL DEFENDANTS by 4/9/2015. (Goodman, Jared) (Entered: 03/16/2015)

2015-03-16

7

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 3/9/2015 (Goodman, Jared) (Entered: 03/16/2015)

2015-03-18

8

NOTICE of Appearance by Marian L. Borum on behalf of UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Borum, Marian) (Entered: 03/18/2015)

2015-04-06

9

Consent MOTION for Extension of Time to Answer, Move or Otherwise Respond to Plaintiff's Complaint by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Borum, Marian) (Entered: 04/06/2015)

2015-04-07

MINUTE ORDER (paperless). Upon consideration of Defendant's 9 Consent Motion for Enlargement of Time, it is hereby ORDERED that Defendant's Motion is GRANTED. It is FURTHER ORDERED that Defendant shall have up to and including JULY 9, 2015, in which to complete its processing of responsive records and move, answer, or otherwise respond to Plaintiff's Complaint. It is FURTHER ORDERED that Defendant shall provide Plaintiff with a rolling production of responsive records and provide the Court and Plaintiff with monthly status reports. Signed by Judge Colleen Kollar-Kotelly on 4/7/2015. (lcckk3) (Entered: 04/07/2015)

STATUS REPORT (First) by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Borum, Marian) (Entered: 05/11/2015)

2015-06-10

11

STATUS REPORT (Second) by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Borum, Marian) (Entered: 06/10/2015)

2015-07-09

12

ANSWER to Complaint by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES.(Borum, Marian) (Entered: 07/09/2015)

2015-07-10

13

ORDER. The parties shall MEET AND CONFER and file a Joint Status Report proposing a schedule for proceeding in this matter. The schedule should address the status of Plaintiff's FOIA request, whether a Vaughn index will be required in this case, etc. The parties shall file the schedule not later than AUGUST 7, 2015. Signed by Judge Colleen Kollar-Kotelly on 7/10/2015. (lcckk3) (Entered: 07/10/2015)

STATUS REPORT (Joint) by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Borum, Marian) (Entered: 08/04/2015)

2015-08-05

15

ORDER Plaintiff's Cross Motion due by 10/21/2015. Response to Cross Motion due by 11/17/2015. Reply to Cross Motion due by 12/8/2015. Defendant's Summary Judgment motion due by 9/21/2015. Response to Motion for Summary Judgment due by 10/21/2015. Reply to Motion for Summary Judgment due by 11/17/2015. Signed by Judge Colleen Kollar-Kotelly on 8/5/15. (dot) (Entered: 08/05/2015)

2015-09-18

16

Consent MOTION for Extension of Time to File Motion for Summary Judgment by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Borum, Marian) (Entered: 09/18/2015)

2015-09-21

MINUTE ORDER granting Defendant's 16 Motion for Extension of Time to File its Motion for Summary Judgment. Defendant shall file its Motion for Summary Judgment (and Vaughn Index) by October 12, 2015. Plaintiff's Opposition and Cross-Motion for Summary Judgment shall be due by November 11, 2015. Defendant's Reply and Opposition to Plaintiff's Cross-Motion shall be due by December 8, 2015. Plaintiff's Reply shall be due by December 31, 2015. Signed by Judge Colleen Kollar-Kotelly on 9/21/2015. (lcckk1) Modified on 9/21/2015 to include the word "Minute" in front of "Order" (kt). (Entered: 09/21/2015)

2015-09-21

Set/Reset Deadlines: Defendant shall file its Motion for Summary Judgment (and Vaughn Index) by 10/12/2015; Plaintiff's Opposition and Cross-Motion for Summary Judgment shall be due by 11/11/2015; Defendant's Reply and Opposition to Plaintiff's Cross-Motion shall be due by 12/8/2015; Plaintiff's Reply shall be due by 12/31/2015. (kt) (Entered: 09/21/2015)

ERRATA by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES 17 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Exhibit)(Borum, Marian) (Entered: 10/19/2015)

2015-10-29

19

Consent MOTION for Extension of Time to File Opposition to Motion for Summary Judgment and Cross-Motion for Summary Judgment by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. (Attachments: # 1 Text of Proposed Order)(Strugar, Matthew) (Entered: 10/29/2015)

2015-10-30

20

ORDER granting Plaintiff's 19 Motion for Extension of Time to File. Plaintiff shall file its cross-motion for summary judgment and opposition to Defendant's motion for summary judgment on or before NOVEMBER 25, 2015. Defendant shall file its reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment on or before DECEMBER 22, 2015. Plaintiff shall file its reply in support of its cross-motion for summary judgment on or before JANUARY 14, 2016. Signed by Judge Colleen Kollar-Kotelly on 10/30/2015. (lcckk1) (Entered: 10/30/2015)

2015-10-30

Set/Reset Deadlines: Plaintiff's Cross Motion due by 11/25/2015. Response to Cross Motion due by 12/22/2015. Reply to Cross Motions due by 1/14/2016. Response to Motion for Summary Judgment due by 11/25/2015. Reply to Motion for Summary Judgment due by 12/22/2015. (dot) (Entered: 11/02/2015)

MINUTE ORDER(paperless). The Court ORDERS that the 21 Motion for Leave to Appear Pro Hac Vice, of John Seber as Additional Counsel for Plaintiff is hereby GRANTED, contingent upon Mr. Seber filing a Notice with the Court certifying that he has reviewed and is familiar with the Local Rules of this Court. Signed by Judge Colleen Kollar-Kotelly on 11/10/2015. (lcckk1) (Entered: 11/10/2015)

2015-11-13

22

NOTICE of Appearance with Certification of Personal Familiarity with the Local Rules of this Court by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. re Order on Motion for Leave to Appear Pro Hac Vice, (Seber, John) (Entered: 11/13/2015)

Consent MOTION for Extension of Time to File Cross-Opposition and Reply by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Borum, Marian) (Entered: 12/09/2015)

2015-12-11

26

ORDER granting Defendant's 25 Motion for Extension of Time. Defendant shall have up to and including JANUARY 25, 2016 in which to file a Cross-Opposition and Reply. Plaintiff shall have up to and including FEBRUARY 19, 2016 in which to file its Reply. Signed by Judge Colleen Kollar-Kotelly on 12/11/2015. (lcckk1) (Entered: 12/11/2015)

Consent MOTION for Extension of Time to File Response/Reply as to 24 MOTION for Summary Judgment by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. (Attachments: # 1 Text of Proposed Order)(Strugar, Matthew) (Entered: 02/05/2016)

2016-02-09

30

ORDER granting 29 Consent Motion for Extension of Time to File Reply as to 24 MOTION for Summary Judgment. Reply to Motion for Summary Judgment due by 3/5/2016. Signed by Judge Colleen Kollar-Kotelly on 2/9/16. (dot) (Entered: 02/09/2016)

NOTICE OF WITHDRAWAL OF APPEARANCE as to PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.. Attorney Matthew Strugar terminated. (Strugar, Matthew) (Entered: 07/11/2016)

2016-08-09

MINUTE ORDER (Paperless). The Court is in receipt of Defendant's 17 Motion for Summary Judgment and Plaintiff's 24 Cross-Motion for Summary Judgment. Having reviewed the parties' briefs regarding these motions, the Court finds that it would be helpful to review the 669 pages of records produced by Defendant to Plaintiff on June 4, 2015 and the 906 pages of records produced by Defendant to Plaintiff on July 8, 2015. The Court finds that these records would assist the Court in determining precisely which information in the Government's productions was redacted as to the five categories of information at issue in the parties' briefing (i.e., the Court is requesting the documents in their redacted form, as they were produced to Plaintiff). To enable the Court's timely resolution of the parties' motions, it is hereby ORDERED that Defendant shall file the aforementioned documents by no later than AUGUST 11, 2016, at 12:00 PM. Signed by Judge Colleen Kollar-Kotelly on 8/9/2016. (lcckk1) (Entered: 08/09/2016)

2016-08-09

Set/Reset Deadlines: Defendant shall file the aforementioned documents by no later than 8/11/2016, at 12:00 PM. (kt) (Entered: 08/09/2016)

ORDER. For the reasons stated in the accompanying Memorandum Opinion, it is, this 18th day of August, 2016, hereby ORDERED that the Court shall GRANT-IN-PART and DENY-IN-PART Defendant's 17 Motion for Summary Judgment, and the Court shall GRANT-IN-PART and DENY-IN-PART Plaintiff's 24 Cross-Motion for Summary Judgment; it is FURTHER ORDERED that the Court shall GRANT Defendant's 17 Motion for Summary Judgment, and the Court shall DENY Plaintiff's 24 Cross-Motion for Summary Judgment on the issue of whether Defendant has met its obligations under FOIA to perform an adequate search for records responsive to Plaintiff's FOIA request; it is FURTHER ORDERED that with respect to the records submitted by the seven companies that objected to the disclosure of the requested information, the Court shall GRANT Defendant's 17 Motion for Summary Judgment, and the Court shall DENY Plaintiff's 24 Cross-Motion for Summary Judgment as to four of the five requested categories of information -- the quantity of animals imported, the descriptions of crates used in shipments, the names of the companies that export the animals, and the names of the airline carriers that transport the animals -- which the Court finds to have been properly withheld from those records; it is FURTHER ORDERED that with respect to the records submitted by the seven companies that objected to the disclosure of the requested information, the Court shall DENY Defendant's 17 Motion for Summary Judgment, and the Court shall GRANT Plaintiff's 24 Cross-Motion for Summary Judgment as to one category of information -- the names of the species of animals imported -- which the Court finds to have been improperly withheld from those records; it is FURTHER ORDERED that with respect to the records submitted by the three companies that did not object to the disclosure of the requested information, the Court shall DENY Defendant's 17 Motion for Summary Judgment, and the Court shall GRANT Plaintiff's 24 Cross-Motion for Summary Judgment as to all five of the requested categories of information, which the Court finds to have been improperly withheld from those records; it is FURTHER ORDERED that Defendant shall, by no later than September 9, 2016, produce the records at issue to PETA, disclosing references to the improperly withheld information described above; it is FURTHER ORDERED that the Court shall DENY Defendant's 17 Motion for Summary Judgment, and the Court shall GRANT Plaintiff's 24 Cross-Motion for Summary Judgment on the issue of whether the Vaughn Index submitted by Defendant contains errors and deficiencies that require correction; it is FURTHER ORDERED that Defendant shall, by no later than September 9, 2016, submit a revised Vaughn Index to PETA, which corrects the errors and deficiencies discussed in the accompanying Memorandum Opinion. This is a final, appealable Order. Signed by Judge Colleen Kollar-Kotelly on 8/18/2016. (lcckk1) (Entered: 08/18/2016)

Unopposed MOTION to Stay re 35 Order on Motion for Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,, by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Borum, Marian) (Entered: 08/26/2016)

2016-08-30

MINUTE ORDER. The Court is in receipt of Defendant's 37 Unopposed Motion for Stay of the Court's August 18, 2016 Order. Defendant seeks a stay of the Court's Order to consider whether to seek appellate review of the Order, and pending that review. The Court GRANTS IN PART and DENIES IN PART Defendant's motion. The Court GRANTS Defendant's Motion to Stay the Order until October 17, 2016, while Defendant considers whether to seek appellate review. The Court DENIES WITHOUT PREJUDICE Defendant's Motion to the extent Defendant seeks to stay the Order pending appellate review. The Court ORDERS Defendant to file a status report no later than October 14, 2016, indicating whether Defendant has decided to appeal the Court's Order and whether, at that time, Defendant still seeks a stay of the Court's Order during appeal. Signed by Judge Colleen Kollar-Kotelly on 8/30/2016. (lcckk3) (Entered: 08/30/2016)

MOTION to Stay the Time for Filing a Motion for Attorneys' Fees by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. (Attachments: # 1 Text of Proposed Order)(Seber, John) (Entered: 09/01/2016)

2016-09-01

39

NOTICE OF SUBSTITUTION OF COUNSEL by Damon William Taaffe on behalf of UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES Substituting for attorney Marian L. Borum (Taaffe, Damon) (Entered: 09/01/2016)

2016-09-02

MINUTE ORDER GRANTING Plaintiff's 38 Motion to Stay the Time for Filing a Motion for Attorneys' Fees. The Court previously stayed its August 18, 2016 Order until October 17, 2016, pending Defendant's decision whether to appeal. Judicial economy and fairness favor granting Plaintiff a similar stay of its deadline to move for attorneys' fees. Plaintiff's deadline to move for attorneys' fees and costs is extended to October 28, 2016. Signed by Judge Colleen Kollar-Kotelly on 9/2/2016. (lcckk3) (Entered: 09/02/2016)

2016-09-15

40

NOTICE OF APPEAL TO DC CIRCUIT COURT as to 36 Memorandum & Opinion, 35 Order on Motion for Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,, by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.. Filing fee $ 505, receipt number 0090-4674863. Fee Status: Fee Paid. Parties have been notified. (Seber, John) (Entered: 09/15/2016)

2016-09-15

41

STRICKEN PURSUANT TO MINUTE ORDER FILED ON 10/05/2016.....MOTION to Alter Judgment as to 35 Order on Motion for Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,, by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Declaration Central States Primates, # 2 Declaration SNBL, # 3 Declaration Dallas Zoo Management)(Taaffe, Damon) Modified on 10/5/2016 (jf). (Entered: 09/15/2016)

2016-09-16

42

Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 40 Notice of Appeal to DC Circuit Court,. (znmw) (Entered: 09/16/2016)

2016-09-22

43

Consent MOTION for Extension of Time to Seek Approval to Appeal in Light of Defendant's Rule 59(e) Motion by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Taaffe, Damon) (Entered: 09/22/2016)

2016-09-23

USCA Case Number 16-5269 for 40 Notice of Appeal to DC Circuit Court, filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. (zrdj) (Entered: 09/26/2016)

2016-09-23

44

ORDER of USCA ORDERED, on the court's own motion, that this case be held in abeyance pending decisions in 1:15cv309-CKK from U.S. District Court. as to 40 Notice of Appeal to DC Circuit Court, filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. USCA Case Number 16-5269. (zrdj) (Entered: 09/26/2016)

2016-09-28

MINUTE ORDER. The Court is in receipt of Defendant's 41 Motion to Alter or Amend Judgment. In light of the Court of Appeals' September 23, 2016 Order holding the case in abeyance pending decision from this Court on this Motion, the Court hereby ORDERS Plaintiff to file a response to Defendant's Motion by no later than OCTOBER 7, 2016. Defendant shall file a reply by no later than OCTOBER 14, 2016. The parties should address whether the relief requested by Defendant would be appropriate under Federal Rule of Civil Procedure 60 as well as Rule 59(e). Signed by Judge Colleen Kollar-Kotelly on 9/28/2016. (lcckk3) (Entered: 09/28/2016)

2016-09-28

MINUTE ORDER. The Court is in receipt of Defendant's 43 Consent Motion to Extend Stay in Light of Defendant's Rule 59(e) Motion to Alter the Judgment and Motion to Vacate the Court's Status Report Order. On August 30, 2016, the Court stayed its August 18, 2016 Order Granting in Part and Denying in Party Defendant's and Plaintiff's motions for summary judgment until October 17, 2016 while Defendant considered whether to seek appellate review of that Order. The Court also ordered Defendant to file a status report on October 14, 2016 indicating whether it intended to appeal. On September 15, 2016, Defendant moved under Federal Rule of Civil Procedure 59(e) to alter the Court's August 18, 2016 Order. Defendant now asserts that this filing extends its deadline to appeal the August 18, 2016 Order, and accordingly requests an extension of the stay. Defendant also requests the Court vacate its August 30, 2016 Order that Defendant be required to file a status report on October 14, 2016. Plaintiff consents, on the condition that no stay is applied to Defendant's production of a corrected Vaughn index, a condition to which Defendant agrees. Accordingly, the Court STAYS its August 18, 2016 Order until SIXTY DAYS after the date the Court resolves Defendant's Motion to Alter or Amend the Judgment. The Court also GRANTS Defendant's Motion to Vacate, but now ORDERS Defendant to file a status report no later than FIVE DAYS before the conclusion of the stay indicating whether Defendant has decided to appeal the Court's Order and whether, at that time, Defendant still seeks a stay of the Court's Order during appeal. Signed by Judge Colleen Kollar-Kotelly on 9/28/2016. (lcckk3) (Entered: 09/28/2016)

2016-09-28

Set/Reset Deadlines: Plaintiff to file a response to Defendant's Motion by no later than 10/7/2016. Defendant shall file a reply by no later than 10/14/ 2016. Defendant Status Report due by 10/14/2016. (dot) (Entered: 09/28/2016)

2016-09-29

45

MOTION to Strike 41 MOTION to Alter Judgment as to 35 Order on Motion for Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,, by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. (Attachments: # 1 Text of Proposed Order)(Seber, John) (Entered: 09/29/2016)

2016-09-29

46

Memorandum in opposition to re 45 MOTION to Strike 41 MOTION to Alter Judgment as to 35 Order on Motion for Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,, filed by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Taaffe, Damon) (Entered: 09/29/2016)

2016-09-30

47

REPLY to opposition to motion re 45 MOTION to Strike 41 MOTION to Alter Judgment as to 35 Order on Motion for Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,, filed by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.. (Seber, John) (Entered: 09/30/2016)

MINUTE ORDER. The Court is in receipt of Defendant's 49 Corrected Motion for Relief under Fed. R. Civ. P. 60(b). The Court ORDERS Plaintiff to file a response to Defendant's Motion by no later than OCTOBER 14, 2016. Defendant shall file a reply by no later than OCTOBER 21, 2016. Signed by Judge Colleen Kollar-Kotelly on 10/5/2016. (lcckk3) (Entered: 10/05/2016)

MINUTE ORDER. The Court is in receipt of Plaintiff's 51 Opposition to Defendant's Motion and Cross-Motion for Relief under Fed. R. Civ. P. 60(b). The Court ORDERS Defendant to file a response to Plaintiff's Cross-Motion by no later than NOVEMBER 7, 2016. Plaintiff shall file a reply by no later than NOVEMBER 21, 2016. Signed by Judge Colleen Kollar-Kotelly on 10/17/2016. (lcckk3) (Entered: 10/17/2016)

Consent MOTION to Stay the Time for Filing a Motion for Attorneys' Fees by PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. (Attachments: # 1 Text of Proposed Order)(Seber, John) (Entered: 10/24/2016)

2016-10-24

MINUTE ORDER. The Court is in receipt of Plaintiff's 54 Consent Motion to Stay the Time for Filing a Motion for Attorneys' Fees. Plaintiff requests that the Court stay the deadline for filing a motion for attorneys' fees and costs until after the parties' pending motions for relief from judgment have been resolved. Plaintiff states that the resolution of those motions will affect the merits of Plaintiff's attorneys' fees motion. Plaintiff represents that this stay will not affect any other deadlines in this matter and that Defendant consents. Accordingly, Plaintiff's Motion is GRANTED. Plaintiff may file a motion for attorneys' fees and costs no later than fourteen days following the resolution of the parties' motions for relief from judgment. Signed by Judge Colleen Kollar-Kotelly on 10/24/2016. (lcckk3) (Entered: 10/24/2016)

MINUTE ORDER. Defendant is ORDERED to file ex parte for the Court's in camera review, by no later than DECEMBER 13, 2016, the letters submitted to it by the importers at issue objecting to the disclosure of the requested information. Signed by Judge Colleen Kollar-Kotelly on 12/8/2016. (lcckk3) (Entered: 12/08/2016)

2016-12-08

MINUTE ORDER. Plaintiff is ORDERED to file by no later than DECEMBER 13, 2016, a sworn declaration stating, with regard to each FOIA or other records request listed in the Declaration of John Seber, ECF No. 51-1, whether Plaintiff was a party to, or intervenor in, the request, and the date on which Plaintiff received the records. Signed by Judge Colleen Kollar-Kotelly on 12/8/2016. (lcckk3) (Entered: 12/08/2016)

2016-12-13

58

NOTICE of Ex Parte Filing by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Taaffe, Damon) (Entered: 12/13/2016)

MINUTE ORDER. The Court is in receipt of Defendant's ex parte response to the Court's December 8, 2016 Minute Order. For the next stage of the Court's phased review, Defendant shall submit under seal for the Court's in camera review, by no later than December 22, 2016, the redacted and/or highlighted documents that are referenced in, and were apparently attached to, the letters of PPI and WWP (Exhibits E and G). Signed by Judge Colleen Kollar-Kotelly on 12/19/2016. (lcckk3) (Entered: 12/19/2016)

2016-12-19

60

NOTICE of Ex Parte Filing by UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Taaffe, Damon) (Entered: 12/19/2016)

2017-01-05

61

ORDER GRANTING Plaintiff's 55 Motion for Leave to File Surreply, GRANTING Defendant's 49 Corrected Motion for Relief under Fed. R. Civ. P. 60(b) and GRANTING IN PART and DENYING IN PART Plaintiff's 52 Cross-Motion for Relief under Fed. R. Civ. P. 60(b). Signed by Judge Colleen Kollar-Kotelly on 1/5/2017. (lcckk3) (Entered: 01/05/2017)